C-280/98

OPINION OF MR MISCHO — CASE C-280/98 P

O P I N I O N OF ADVOCATE GENERAL MISCHO delivered o n 18 May 2000 *

1. By application lodged on 23 July 1998 4. For the full statement of the complaints Moritz J. Weig GmbH & Co. KG (herein- formulated by Weig against the Decision after 'Weig') appealed against the judgment and the grounds on which the Court of the Court of First Instance of 14 May considered it should uphold them in part 1998 in Weig v Commission 1(hereinafter only, I refer you to the contested judgment. 'the contested judgment').

2. By that judgment the Court upheld the 5. In its appeal, Weig claims that the Court application in part, reducing the fine of Justice should: i m p o s e d on t h e a p p e l l a n t from ECU 3 000 000 to ECU 2 500 000, but dismissed the remainder. The action had been brought by Weig against Commission Decision 94/601/EC of 13 July 1994 relat- ing to a proceeding under Article 85 of the EC Treaty (IV/C/33.833 — Carton- board) 2 (hereinafter 'the Decision'), in — set aside the contested judgment and which the Commission imposed fines on annul Article 3 of the Decision, and 19 manufacturers supplying cartonboard order the Commission to pay the costs on the Community market on the ground of the proceedings before the Court of that they had infringed Article 85(1) of the First Instance and the Court of Justice; EC Treaty (now Article 81(1) EC).

3. Weig asked the Court of First Instance to annul the Decision in whole or in part or, — in the alternative, set aside the con- alternatively, to reduce the amount of the tested judgment and reduce the fine fine. imposed on the appellant by Article 3 of the Decision to ECU 1 000 000, and order the Commission to pay two- * Original language: French. thirds of the appellant's costs in the 1 — Case T-317/94 Weig v Commission [1998] ECR II-1235. proceedings before the Court of First 2 — OJ 1994 L 243, p. 1. Instance and all the appellant's costs in

9. The appellant claims that the Court of First Instance could not, without infringing Article 190 of the EC Treaty (now Arti- 7. In support of the form of order sought, cle 253 EC), state that the statement of Weig submits two pleas. reasons for the Decision was inadequate in so far as concerns the fixing of the amount of the fine imposed on the appellant and, at the same time, refuse to annul it in that regard.

— the first plea: inadequacy of the state- ment of reasons for the Decision as regards the fixing of the fine imposed on the appellant; 10. Since this criticism is the same as that made by the appellant Mo och Domsjö AB in Case C-283/98 P, I refer, for a statement of the grounds for rejecting this plea, to the Opinion which I am delivering today in — the second plea: infringement of the that matter. principle of equal treatment, of Arti- cle 15(2) of Council Regulation No 17 of 6 February 1962, First regulation 3 — OJ, English Special Edition 1962, 13, p. 204.

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The second plea: insufficient reduction 15. Fourthly, it maintains that the coopera- made in the fine by the Court of First tion it gave during the proceedings con- Instance ducted by the Commission was not prop- erly taken into account.

11. This plea, which alleges that the Court of First Instance infringed the principle of equal treatment, Article 15(2) of Regula- 16. Since the third part of the plea is based tion No 17 and Article 172 of the Treaty on a line of argument whose relevance I by fixing the fine at ECU 2 500 000, is examine in the Opinion I am delivering in presented by the appellant in four parts. Case C-283/98 P, mentioned above, I refer you once again to that Opinion for a statement of the reasons which lead me to reject it.

19. The fourth part of the second plea in 23. It would be defeated by the fact that an law must therefore be rejected. appeal brought before the Court of Justice, which can relate only to questions of law, cannot have the sole aim of providing a procedural framework within which to challenge the assessments of the validity and quantum of a fine made by the Court of First Instance in the exercise of its 20. It is true that the first and second parts unlimited jurisdiction. are separate: demanding application of the method of calculation used, on its own admission, by the Commission to deter- mine the amount of the fines imposed on the various members of the cartel is not exactly the same as criticising the Court of 24. It seems to me that the first two parts of First Instance for having discriminated Weig's second plea in law are not inadmis- between various undertakings for which it sible on that ground. found that the Commission had fixed the amount of the fine on the basis of informa- tion which was incorrect or, at least, not proved. However, they raise fundamentally the same issue. 25. Firstly, the appellant has been careful to allege that the Court of First Instance infringed a rule of law, in this case the principle of equal treatment, not that it fixed the amount of the fine at an inap- propriate level.

21. Did the Court of First Instance observe the principle of equal treatment between the various undertakings which were mem- bers of the same cartel when, having established that the appellant had partici- 26. Secondly, it puts forward an argument pated in the cartel for only 38 months, and which is directed specifically against the not 60 as claimed by the Commission, it contested judgment. It does not, therefore, reduced the fine imposed on Weig from lay itself open to the criticism that it has ECU 3 000 000 to ECU 2 500 000? merely repeated the argument it put for-

30. However, according to the appellant, in its case the Court of First Instance clearly departed from that method, since it held 33. Intellectually speaking, this second ele- that a fine of ECU 2 500 000 should be ment of discrimination is, in fact, different imposed on it. This was a very different from the first, even though it is difficult to sum from the ECU 1 909 000 which the imagine by what magic the fine imposed on Court should have reached if it had used the appellant could not have been discri- the method, taking account of the fact that minatory in its amount when it was not

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WEIG V COMMISSION

calculated, if we are to believe Weig, Court expressly acknowledged the validity according to the same method as for the of the method used by the Commission, let other undertakings. alone that it evinced an intention to follow the method itself.

34. May the Court of Justice, without exceeding its role when sitting in an 37. In exercising its discretion in the mat- appellate capacity, follow the appellant ter, the Court may have taken a different along this path? I very much doubt it. Even approach from the Commission when if the relatively complex calculations made weighing up the various factors to be taken by Weig in its application turned out, on into account for fixing the fines, but ended inspection, to be correct, the Court could up, for all the appellants except Weig, with hold that there had been discrimination the same result as it would have obtained only at the cost of denying the degree of by applying the Commission's method. latitude which the Court of First Instance enjoys when hearing and determining a case in exercise of its unlimited jurisdiction.

41. Let us, for a moment, put ourselves in respect of whom the Court had also found Weig's position. Reading the contested that the Commission had committed errors judgment, it was pleased to note that the in calculating the fine, and found, to its Court of First Instance had acknowledged astonishment, that, in their case, the new the validity of its challenge with regard to amount of the fine seemed to result from the duration of its participation in the the application of the Commission's cartel. Although the Commission main- method of calculation. The appellant was tained that it had participated in the cartel obviously very confused, especially in view for 60 months, the Court held that it had of the fact that the Court, although it not been involved for more than 38 observed that the fixing of a fine depends months. However, it was also disappointed on a large number of factors and does not to note that, although the replacement of obey the laws of arithmetic, did not at the figure 60 by the figure 38 in the anytime expressly rule out or even criticise arithmetical calculations made by the the method used by the Commission. Commission to fix the amount of the fine should have reduced it to ECU 1 909 000, t h e C o u r t fixed t h e a m o u n t at ECU 2 500 000, and gave the following explanation:

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WEIG V COMMISSION

order that the undertaking concerned may the criteria by which, having regard to have information enabling it to weigh up Weig's rights of defence, it was reasonable the pros and cons of bringing an appeal for it to fix a fine of ECU 2 500 000, or to before the Court of Justice. reduce that amount.

45. I cannot, for my part, see any incom- 48. However, after reading the whole file, I patibility between the exercise of unlimited am left with the very clear impression that jurisdiction and the need for transparency the only difference between the Court of since, by definition, the court has nothing First Instance and the Commission regard- to hide. Since the infringement of the duty ing the factors to be taken into account for to state reasons, which weighs at least as fixing the amount of the fine concerned the heavily on the court as on those who wield duration of the infringement. Neither the political power, may be raised by the Court appellant's turnover for the relevant finan- of Justice of its own motion, I suggest that cial year nor the significance of the role it the Court set aside the contested judgment played in the cartel were disputed, and the in so far as it fixed at ECU 2 500 000 the Court of First Instance found nothing to fine imposed on Weig in respect of its criticise regarding the general level of fines involvement in the cartonboard sector. fixed by the Commission.

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its appeal, would remove any discrimina- decided that each party should bear its tion against it. own costs.

50. All things considered, I suggest that the 52. I propose that this distribution should Court take this second approach. be slightly amended, so that the appellant bears only four fifths of its own costs and the Commission pays, in addition to its own costs, one fifth of those incurred by the appellant.

Costs 53. As regards the costs relating to the appeal proceedings, I consider, in view of 51. It is clear that if the contested judgment the fact that the appellant has failed in most is set aside, even in only one respect, this of its pleas, that it should bear its own costs must be reflected in the costs. In the and pay two thirds of the costs incurred by judgment, the Court of First Instance the Commission.

Conclusion

— order the Commission of the European Communities to bear, in respect of the proceedings before the Court of First Instance, its own costs and to pay one fifth of the costs incurred by the appellant and, in respect of the proceedings before the Court of Justice, to bear one third of its own costs;

— dismiss the remainder of the appeal.

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